Locklear v. CummingsÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-1015-2

Filed: 4 December 2018

Robeson County, No. 15 CVS 1945

MARJORIE C. LOCKLEAR, Plaintiff,

v.

MATTHEW S. CUMMINGS, M.D., SOUTHEASTERN REGIONAL MEDICAL
CENTER, DUKE UNIVERSITY HEALTH SYSTEM and DUKE UNIVERSITY
AFFILIATED PHYSICIANS, INC., Defendants.

Appeal by Plaintiff from orders entered 2 February 2016 and 4 February 2016

by Judge James Gregory Bell in Robeson County Superior Court. Heard in the Court

of Appeals 8 March 2017. By opinion issued 16 May 2017, a divided panel of this

Court reversed in part and affirmed in part the trial court’s grant of Defendants’

motions to dismiss. In an opinion filed 17 August 2018, the Supreme Court of North

Carolina reversed and remanded the case to the Court of Appeals for reconsideration

in light of the Supreme Court’s decision Vaughan v. Mashburn, ___ N.C. ___, 817

S.E.2d 370 (2018).

Law Offices of Walter L. Hart, IV, by Walter L. Hart, IV, for Plaintiff-Appellant.

Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, David D. Ward,
and Katherine Hilkey-Boyatt, for Defendant-Appellees Matthew S. Cummings,
M.D., Duke University Health System, and Duke University Affiliated
Physicians, Inc.

Brotherton Ford Berry & Weaver, PLLC, by Robert A. Ford and Demetrius
Worley Berry, for Defendant-Appellee Southeastern Regional Medical Center.
 LOCKLEAR V. CUMMINGS

Opinion of the Court

HUNTER, JR., Robert N., Judge.

Marjorie C. Locklear (“Plaintiff”) appeals from an order dismissing her

complaint against Defendants Dr. Matthew Cummings, Duke University Health

System, and Duke University Affiliated Physicians (collectively “Duke Defendants”)

under Rule 9(j), as well as the denial of her motion to amend under Rule 15(a).

Plaintiff also appeals from an order dismissing her complaint against Defendant

Southeastern Regional Medical Center (“Southeastern”) under Rules 9(j) and

12(b)(5), as well as the denial of her motion to amend under Rule 15(a). After review,

we vacate and remand in part and affirm in part.

I. Factual and Procedural Background

On 30 July 2015, one day before the statute of limitations expired, Plaintiff

filed a complaint against Defendants, seeking monetary damages for medical

negligence. The complaint alleges the following narrative.

On 31 July 2012, Dr. Cummings performed cardiovascular surgery on Plaintiff.

During surgery, Dr. Cummings failed to monitor and control Plaintiff’s body and was

distracted. Additionally, he did not position himself in close proximity to Plaintiff’s

body. While Plaintiff “was opened up and had surgical tools in her[,]” Plaintiff fell off

of the surgical table. Plaintiff’s head and the front of her body hit the floor. As a

result of the fall, Plaintiff suffered a concussion, developed double vision, injured her

jaw, displayed bruises, and was “battered” down the left side of her body. Plaintiff

-2-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

also had “repeated” nightmares about falling off the surgical table. Duke Defendants

and Defendant Southeastern acted negligently by retaining physicians, nurses, and

other healthcare providers who allowed Plaintiff’s accident to occur.

In her complaint, Plaintiff included the following, in attempt to comply with

Rule 9(j) of the North Carolina Rules of Civil Procedure:

24. That the medical care and treatment rendered to
Plaintiff by Defendant Cummings on July 31, 2012 has
been reviewed by a person who is reasonably expected to
qualify as an expert witness under Rule 702 of the North
Carolina Rules of Evidence, and who is willing to testify
that the medical care rendered to Plaintiff fell below the
applicable standard of care.

25. That the medical care and treatment of Defendant
Cummings has been reviewed by a person that Plaintiff
will seek to have qualified [as] an expert witness under
Rule 702 of the North Carolina Rules of Evidence, and who
is willing to testify that the medical care rendered to
Plaintiff fell below the applicable standard of care.

….

34. That the medical care and treatment of Defendant
Southeastern Regional Medical Center has been reviewed
by a person who is reasonably expected to qualify as an
expert witness under Rule 702 of the North Carolina Rules
of Evidence, and who is willing to testify that the medical
care rendered to the decedent fell below the applicable
standard of care.

35. That the medical care and treatment of Defendant
Southeastern Regional Medical Center has been reviewed
by a person that the Plaintiff will seek to have qualified as
an expert witness by Motion under Rule 702 of the North
Carolina Rules of Evidence, and who is willing to testify

-3-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

that the medical care rendered to the decedent fell below
the applicable standard of care.

On 9 September 2015, private process server, Richard Layton, served Duke

Defendants by delivering Plaintiff’s civil cover sheet, summons, and complaint to

Margaret Hoover, a registered agent for Duke Defendants. On 19 September 2015,

Gary Smith, Jr. served Plaintiff’s summons and complaint on Dr. Cummings. Lastly,

on 24 September 2015, Smith served Plaintiff’s summons and complaint on

Southeastern by delivering the papers to C. Thomas Johnson, IV, Southeastern’s

Chief Financial Officer.1

On 10 November 2015, Dr. Cummings and Duke Defendants filed a joint

answer and motion to dismiss. Dr. Cummings and Duke Defendants denied the

allegations in Plaintiff’s complaint and asserted defenses under Rules 12(b)(6) and

9(j) of the North Carolina Rules of Civil Procedure.

On 23 November 2015, Southeastern filed an answer and denied Plaintiff’s

allegations. Southeastern moved to dismiss Plaintiff’s compliant under Rules

12(b)(4), 12(b)(5), 12(b)(6), and 9(j) of the North Carolina Rules of Civil Procedure.

On 29 December 2015, Johnson filed an affidavit. In the affidavit, Johnson swore he

was the Chief Financial Officer of Southeastern, but not the corporation’s registered

agent.

1 In Smith’s affidavit, he listed Johnson as Southeastern’s registered agent.

-4-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

On 8 January 2016, Plaintiff filed notice of submission of affidavits in

opposition of Defendants’ motions to dismiss. Plaintiff attached nurse Melissa

Hannah’s affidavit, which stated, inter alia:

4. I have been retained by counsel for the Plaintiff Marjorie
C. Locklear.

5. I expect to be qualified as a nursing expert for the
Plaintiff Marjorie Locklear.

6. I have reviewed Marjorie Locklear’s relevant medical
records from Southeastern regional Medical Center for the
time period of July 31, 2012 through August 5, 2012.

6. [sic] From my review of these medical records, I
determined that the nursing staff attending Ms. Locklear
and assisting Dr. Matthew S. Cummings on July 31, 2012
deviated from the applicable standard of care for nursing
personnel in letting Ms. Locklear fall off the catherization
table on which she had been placed.

7. I am ready willing and able to testify as to all relevant
issues including those specified above.

8. I first expressed by opinions in writing on July 28, 2015,
by answering and relaying a questionnaire.

Plaintiff also attached Dr. Richard Spellberg’s affidavit, which stated, inter alia:

3. I was retained by the Plaintiff in this action. Marjorie c.
Locklear.

4. I reviewed Ms. Locklear’s medical records from
Southeastern Regional Medical Center for the time period
of July 31, 2012 through August 5, 2012.

5. After my review, I orally expressed my opinion to
counsel for the Plaintiff on July 21, 2015.

-5-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

….

7. I expect to be qualified as a physician expert for the
Plaintiff Marjorie Locklear.

8. From my review of the medical records specified above,
I determined that Matthew S. Cummings, M.D. deviated
from the standard of care applicable to Marjorie Locklear
and her condition by letting her fall off the catherization
table on which she had been placed.

9. From my review of the medical records specified above,
I determined that Dr. Cummings’ deviation from the
applicable standard of care resulted in injury to Ms.
Locklear . . . .

….

11. I am ready willing and able to testify as to all relevant
issues including those discussed above.

On 11 January 2016, the trial court held a hearing on all Defendants’ pending

motions. During argument, Plaintiff requested “leave of the Court to amend [the]

complaint so that there’s no controversy hereafter.” Plaintiff asserted she “wishe[d]

to allege not just that the medical care and all medical records were reviewed but

that the review was conducted prior to the complaint being filed and that a proper

review was done.” Then, Plaintiff requested leave “pursuant to Rules 15(a) and 60.”

On 2 February 2016, the trial court granted Dr. Cummings’s and Duke

Defendants’ motion to dismiss pursuant to Rule 9(j) and denied Plaintiff’s motion to

amend under Rule 15(a). On 4 February 2016, the trial court granted Southeastern’s

-6-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

motion to dismiss pursuant to Rules 9(j) and 12(b)(5) and denied Plaintiff’s motion to

amend under Rule 15(a). Plaintiff filed timely notice of appeal.

II. Standard of Review

The standard of review of a Rule 12(b)(6) motion to dismiss is de novo. Leary

v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003). Likewise,

a trial court’s order dismissing a complaint pursuant to Rule 9(j) is reviewed de novo

on appeal because it is a question of law. Barringer v. Wake Forest Univ. Baptist Med.

Ctr., 197 N.C. App. 238, 256, 677 S.E.2d 465, 477 (2009) (citation omitted).

“A motion to amend is addressed to the discretion of the trial court.” Henry v.

Deen, 310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984). “When the trial court’s ruling is

based on a misapprehension of law, the order will be vacated and the case remanded

to the trial court for further proceedings.” Vaughan v. Mashburn, ___ N.C. ___, ___,

817 S.E.2d 370, ___ (2018) (“Vaughan II”) (citing Concerned Citizens of Brunswick

Cty. Taxpayers Ass’n v. State ex rel. Rhodes, 329 N.C. 37, 54-55, 404 S.E.2d 677, 688

(1991)).

We review the trial court’s dismissal under Rule 12(b)(5) de novo. New

Hanover Cty. Child Support Enforcement ex rel. Beatty v. Greenfield, 219 N.C. App.

531, 533, 723 S.E.2d 790, 792 (2012) (citation omitted).

III. Analysis

A. Motions to Dismiss under Rule 9(j) and Motion to Amend under Rule 15

-7-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

Plaintiff argues the trial court erred in dismissing her complaint against

Defendants under Rule 9(j) and denying her motion to amend under Rule 15. We

agree.

Rule 9 of the Rules of Civil Procedure governs special pleadings and states:

(j) Medical malpractice.--Any complaint alleging medical
malpractice by a health care provider pursuant to G.S. 90-
21.11(2)a. in failing to comply with the applicable standard
of care under G.S. 90-21.12 shall be dismissed unless:

(1) The pleading specifically asserts that the medical
care and all medical records pertaining to the
alleged negligence that are available to the plaintiff
after reasonable inquiry have been reviewed by a
person who is reasonably expected to qualify as an
expert witness under Rule 702 of the Rules of
Evidence and who is willing to testify that the
medical care did not comply with the applicable
standard of care;

(2) The pleading specifically asserts that the medical
care and all medical records pertaining to the
alleged negligence that are available to the plaintiff
after reasonable inquiry have been reviewed by a
person that the complainant will seek to have
qualified as an expert witness by motion under Rule
702(e) of the Rules of Evidence and who is willing to
testify that the medical care did not comply with the
applicable standard of care, and the motion is filed
with the complaint; . . . .

N.C. R. Civ. P. 9(j) (2017).

In her brief, Plaintiff concedes “her counsel inadvertently failed to expressly

state this pre-filing evaluation included a review of ‘all medical records pertaining to

-8-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

the alleged negligence.’ ” However, Plaintiff argues she “actually complied with the

substantive pre-suit review requirements of Rule 9(j).”

Our Supreme Court recently addressed the interplay between Rule 15 and

Rule 9(j) of the North Carolina Rules of Civil Procedure in Vaughan v. Mashburn.

Vaughan II, ___ N.C. ___, 817 S.E.2d 370. In that case, plaintiff filed a complaint for

medical malpractice but “inadvertently used the certification language of a prior

version of Rule 9(j)[.]” Id. at ___, 817 S.E.2d at ___. Specifically, plaintiff’s complaint

failed to include the following language “all medical records pertaining to the alleged

negligence that are available to the plaintiff after reasonable inquiry[,]” as required

by the current Rule 9(j). Id. at ___, 817 S.E.2d at ___. Consequently, defendants filed

a motion to dismiss plaintiff’s complaint, pursuant to Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure. Id. at ___, 817 S.E.2d at ___. In response to

defendants’ motion, plaintiff filed a motion for leave to file an amended complaint.

Id. at ___, 817 S.E.2d at ___. Plaintiff wanted to amend her complaint to add the one

missing sentence required by Rule 9(j), so as to be in compliance with Rule 9(j). Id.

at ___, 817 S.E.2d at ___. In support of her motion, plaintiff submitted affidavits,

indicating an expert “reviewed plaintiff’s medical care and related medical records

before the filing of plaintiff’s original complaint.” Id. at ___, 817 S.E.2d at ___. The

trial court granted defendants’ motion to dismiss, denied plaintiff’s motion to amend,

-9-
 LOCKLEAR V. CUMMINGS

Opinion of the Court

and dismissed plaintiff’s complaint, with prejudice. Id. at ___, 817 S.E.2d at ___.

Plaintiff appealed.

Our Court affirmed the trial court’s order. Vaughan v. Mashburn, ___ N.C.

App. ___, 795 S.E.2d 781 (2016) (“Vaughan I”). Concluding precedent bound the

decision, we held “where a medical malpractice ‘plaintiff did not file the complaint

with the proper Rule 9(j) certification before the running of the statute of limitation,

the complaint cannot have been deemed to have commenced within the statute.’ ” Id.

at ___, 795 S.E.2d at 788 (citation and emphasis omitted). Thus, the trial court did

not err in denying plaintiff’s motion to amend. Id. at ___, 795 S.E.2d at 788. Plaintiff

filed a petition for discretionary review with the North Carolina Supreme Court.

Vaughan II, ___ N.C. at ___, 817 S.E.2d at ___. The Supreme Court allowed plaintiff’s

petition for discretionary review. Id. at ___, 817 S.E.2d at ___.

Our Supreme Court reversed this Court’s decision. After reviewing the

purposes behind Rule 15 and Rule 9(j), the Supreme Court held “a plaintiff in a

medical malpractice action may file an amended complaint under Rule 15(a) to cure

a defect in a Rule 9(j) certification when the expert review and certification occurred

before the filing of the original complaint. Further, such an amended complaint may

relate back under Rule 15(c).” Id. at ___, 817 S.E.2d at ___. The Supreme Court

further stated:

[w]e again emphasize that in a medical malpractice action
the expert review required by Rule 9(j) must occur before

- 10 -
 LOCKLEAR V. CUMMINGS

Opinion of the Court

the filing of the original complaint. This pre-filing expert
review achieves the goal of weed[ing] out law suits which
are not meritorious before they are filed. But when a
plaintiff prior to filing has procured an expert who meets
the appropriate qualifications and, after reviewing the
medical care and available records, is willing to testify that
the medical care at issue fell below the standard of care,
dismissing an amended complaint would not prevent
frivolous lawsuits. Further, dismissal under these
circumstances would contravene the principle that
decisions be had on the merits and not avoided on the basis
of mere technicalities.

Id. at ___, 817 S.E.2d at ___ (citations and quotation marks omitted) (alteration and

emphasis in original).

In the case sub judice, Plaintiff inadvertently used Rule 9(j) certification

language from a prior version of the rule, similar to plaintiff in Vaughan. After

Defendants filed motions to dismiss, Plaintiff filed two affidavits, one by Dr. Spellberg

and one by nurse Hannah. At the hearing, Plaintiff requested leave to amend her

complaint, because she “wishe[d] to allege not just that the medical care and all

medical records were reviewed but that the review was conducted prior to the

complaint being filed and that a proper review was done.” Following the Supreme

Court’s holding in Vaughan II, we hold the trial court erred in dismissing Plaintiff’s

complaint under Rule 9(j) and denying her motion to amend.2 While Defendants

2Our holding does not conflict with this Court’s recent decision, Fairfield v. WakeMed, ___
N.C. App. ___, ___ S.E.2d ___ (N.C. Ct. App. Oct. 2, 2018). In Fairfield, plaintiff did not file or appeal
from a motion to amend. Thus, the holding of Vaughan II did not apply, because there was no interplay
between Rule 9(j) and Rule 15. Instead, our Court based its decision only on Rule 9(j).

- 11 -
 LOCKLEAR V. CUMMINGS

Opinion of the Court

present several arguments in support of affirming the trial court’s orders—which

would have been persuasive under prior case law—these arguments are based on

technicalities. Agreeing with Defendants would violate the holding and spirit of

Vaughan II. Accordingly, we vacate the trial court’s orders dismissing Plaintiff’s

complaint against Defendants and denying Plaintiff’s motion to amend and remand

for proceedings not inconsistent with this opinion.3

B. Motion to Dismiss under Rule 12(b)(5)

Plaintiff next contends the trial court erred in dismissing her claims against

Southeastern under Rule 12(b)(5). We disagree.

Rule 4 of the North Carolina Rules of Civil Procedure governs service of process

in North Carolina. Rule 4 states, inter alia:

(a) Summons — Issuance; who may serve.–Upon the filing
of the complaint, summons shall be issued forthwith, and
in any event within five days. The complaint and summons
shall be delivered to some proper person for service. In this
State, such proper person shall be the sheriff of the county
where service is to be made or some other person duly
authorized by law to serve summons.

....

(h) Summons—When proper officer not available.—If at
any time there is not in a county a proper officer, capable
of executing process, to whom summons or other process
can be delivered for service, or if a proper officer refuses or

3 The trial court dismissed Plaintiff’s complaint against Dr. Cummings and Duke Defendants
only under Rule 9(j); thus, we vacate that order. However, the trial court dismissed Plaintiff’s
complaint against Southeastern under Rule 9(j) and Rule 12(b)(5). We vacate the portion of the order
decided under Rule 9(j) and affirm the portion of the order decided under Rule 12(b)(5).

- 12 -
 LOCKLEAR V. CUMMINGS

Opinion of the Court

neglects to execute such process, or if such officer is a party
to or otherwise interested in the action or proceeding, the
clerk of the issuing court, upon the facts being verified
before him by written affidavit of the plaintiff or his agent
or attorney, shall appoint some suitable person who, after
he accepts such process for service, shall execute such
process in the same manner, with like effect, and subject to
the same liabilities, as if such person were a proper officer
regularly serving process in that county.

(h1) Summons—When process returned unexecuted. –If a
proper officer returns a summons or other process
unexecuted, the plaintiff or his agent or attorney may
cause service to be made by anyone who is not less than 21
years of age, who is not a party to the action, and who is
not related by blood or marriage to a party to the action or
to a person upon whom service is to be made. This
subsection shall not apply to executions pursuant to Article
28 of Chapter 1 or summary ejectment pursuant to Article
3 of Chapter 42 of the General Statutes.

N.C. Gen. Stat. § 1A-1, Rule 4 (2016).

Plaintiff argues service by a private process server is permissible under the

North Carolina Rules of Civil Procedure if the private process server files an affidavit

under N.C. Gen. Stat. § 1-75.10.4

Southeastern contends holding Plaintiff’s service was proper conflates Rule

4(a) with Rule 4(h) and Rule 4(h1). We agree.

4 In support of her argument, Plaintiff also cites Garrett v. Burris, No. COA14-1257, 2015 WL
4081832 (unpublished) (N.C. Ct. App. July 7, 2015). However, Garrett is an unpublished opinion and
is not binding authority.

- 13 -
 LOCKLEAR V. CUMMINGS

Opinion of the Court

Here, Plaintiff hired a private process server, Smith, to serve Southeastern.

On 24 September 2015, Smith served Johnson, the Chief Financial Officer of

Southeastern. On 14 October 2015, Smith signed an “Affidavit of Process Server”

asserting he was over the age of 18 years, not a party to the action, and “authorized

by law to perform said service.”

In North Carolina, private process service is not always “authorized under

law”. The proper person for service in North Carolina is the sheriff of the county

where service is to be attempted or some other person duly authorized by law to serve

summons. N.C. Gen. Stat. § 1A-1, Rule 4(a). Although Plaintiff’s process server filed

the statutorily required affidavit, a self-serving affidavit alone does not confer “duly

authorized by law” status on the affiant. Legal ability to serve process by private

process server is limited by statute in North Carolina to scenarios where the sheriff

is unable to fulfill the duties of a process server. N.C. Gen. Stat. § 1A-1, Rule 4(h),

(h1). For example, if the office of the sheriff is vacant, the county’s coroner may

execute service. N.C. Gen. Stat. § 162-5. Additionally, if service is unexecuted by the

sheriff under Rule 4(a), the clerk of the issuing court can appoint “some suitable

person” to execute service under Rule 4(h). Here, the record does not disclose the

sheriff was unable to deliver service so that the services of a process server would be

needed. This is commonly accepted statutory practice in North Carolina and

discussed in treatises dealing with civil procedure. See William A. Shuford, North

- 14 -
 LOCKLEAR V. CUMMINGS

Opinion of the Court

Carolina Civil Practice and Procedure § 4.2 (6th ed.); 1 G. Gray Wilson, North

Carolina Civil Procedure § 4-4, at 4-16 (2016). Accordingly, we affirm the trial court’s

order dismissing Plaintiff’s claims against Southeastern under Rule 12(b)(5) of the

North Carolina Rules of Civil Procedure.

IV. Conclusion

For the foregoing reasons, we vacate the portions of the trial court’s orders

dismissing Plaintiff’s complaint under Rule 9(j) and denying Plaintiff’s motion to

amend. We affirm the portion of the trial court’s order dismissing Plaintiff’s

complaint against Southeastern under Rule 12(b)(5).

VACATED AND REMANDED IN PART; AFFIRMED IN PART.

Judge CALABRIA concurs.

Judge BERGER dissenting in part in separate opinion, concurring in part.

- 15 -
No. COA16-1015 – Locklear v. Cummings

BERGER, Judge, dissenting in part in separate opinion, concurring in part.

I respectfully dissent from the portion of the majority opinion vacating and

remanding the trial court’s order that had dismissed Plaintiff’s complaint and denied

her motion to amend. Otherwise, I concur with the majority.

First and foremost, it must be stressed that “[a] motion to amend the pleadings

is addressed to the sound discretion of the trial court[,]” and “[t]he exercise of the

court’s discretion is not reviewable absent a clear showing of abuse.” Carter v.

Rockingham Cnty. Bd. Educ., 158 N.C. App. 687, 690, 582 S.E.2d 69, 72 (2003)

(citations and quotation marks omitted). Furthermore, in our review of the denial of

a motion to amend, a trial court’s “ruling is to be accorded great deference and will

be upset only upon a showing that it was so arbitrary that it could not have been the

result of reasoned decision.” Outer Banks Contractors, Inc. v. Daniels & Daniels

Constr., Inc., 111 N.C. App. 725, 729, 433 S.E.2d 759, 762 (1993) (citations and

quotation marks omitted).

Here, Plaintiff sought to amend her complaint alleging medical malpractice so

that it would comply with Rule 9(j) of the North Carolina Rules of Civil Procedure,

which states that:

Any complaint alleging medical malpractice by a health
care provider pursuant to G.S. 90-21.11(2)a. in failing to
comply with the applicable standard of care under G.S. 90-
21.12 shall be dismissed unless:

(1) The pleading specifically asserts that the medical care
and all medical records pertaining to the alleged
 LOCKLEAR V. CUMMINGS

BERGER, J., concurring in part and dissenting in part

negligence that are available to the plaintiff after
reasonable inquiry have been reviewed by a person who
is reasonably expected to qualify as an expert witness
under Rule 702 of the Rules of Evidence and who is
willing to testify that the medical care did not comply
with the applicable standard of care;

(2) The pleading specifically asserts that the medical care
and all medical records pertaining to the alleged
negligence that are available to the plaintiff after
reasonable inquiry have been reviewed by a person that
the complainant will seek to have qualified as an
expert witness by motion under Rule 702(e) of the
Rules of Evidence and who is willing to testify that the
medical care did not comply with the applicable
standard of care, and the motion is filed with the
complaint; or

(3) The pleading alleges facts establishing negligence
under the existing common-law doctrine of res ipsa
loquitur.

Upon motion by the complainant prior to the expiration of
the applicable statute of limitations, a resident judge of the
superior court for a judicial district in which venue for the
cause of action is appropriate under G.S. 1-82 or, if no
resident judge for that judicial district is physically present
in that judicial district, otherwise available, or able or
willing to consider the motion, then any presiding judge of
the superior court for that judicial district may allow a
motion to extend the statute of limitations for a period not
to exceed 120 days to file a complaint in a medical
malpractice action in order to comply with this Rule, upon
a determination that good cause exists for the granting of
the motion and that the ends of justice would be served by
an extension. The plaintiff shall provide, at the request of
the defendant, proof of compliance with this subsection
through up to ten written interrogatories, the answers to
which shall be verified by the expert required under this

2
 LOCKLEAR V. CUMMINGS

BERGER, J., concurring in part and dissenting in part

subsection. These interrogatories do not count against the
interrogatory limit under Rule 33.

N.C. Gen. Stat. § 1A-1, Rule 9 (emphasis added).

“Rule 9(j) of the North Carolina Rules of Civil Procedure dictates the pleading

requirements for bringing a medical malpractice action [and] serves as a gatekeeper,

enacted by the legislature, to prevent frivolous malpractice claims by requiring expert

review before filing of the action.” Estate of Wooden ex rel. Jones v. Hillcrest

Convalescent Ctr., Inc., 222 N.C. App. 396, 401, 731 S.E.2d 500, 504 (2012) (citation

and quotation marks omitted). This Rule also “unambiguously requires a trial court

to dismiss a complaint if the complaint’s allegations do not facially comply with the

rule’s heightened pleading requirements.” Norton v. Scotland Mem’l Hosp., Inc., ___

N.C. App. ___, ___, 793 S.E.2d 703, 707 (2016) (citation omitted). Our Supreme Court

has clarified that the review contemplated by Rule 9(j)(1) and (2) must occur prior to

the filing of a medical malpractice complaint to avoid dismissal. Vaughan v.

Mashburn, ___ N.C. ___, ___, 817 S.E.2d 370, 377 (2018).

Additionally, “[b]ecause the legislature has required strict compliance with

this rule, our courts have ruled that if a pleader fails to properly plead his case in his

complaint, it is subject to dismissal without the opportunity for the plaintiff to amend

his complaint under Rule 15(a).” Alston v. Hueske, 244 N.C. App. 546, 553, 781 S.E.2d

305, 310 (2016) (citation omitted); Keith v. Northern Hosp. Dist. of Surry Cnty., 129

N.C. App. 402, 405, 499 S.E.2d 200, 202 (1998). In the drafting of Rule 9(j)(1) and (2),

3
 LOCKLEAR V. CUMMINGS

BERGER, J., concurring in part and dissenting in part

which both require review of “all medical records,” “[w]e presume that the legislature

carefully chose each word used.” Moore v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812,

817 (2012) (purgandum5). The United States Court of Federal Claims gave the best

explanation of ‘all,’ when it wrote:

‘All’ is often used in writing intended to have legal effect as
a preface to flexible or imprecise words, as in ‘all other
property,’ ‘all the rest and residue,’ ‘all and every,’ ‘all
speed,’ ‘all respect.’ Its purpose is to underscore that
intended breadth is not to be narrowed. ‘All’ means the
whole of that which it defines—not less than the entirety.
‘All’ means all and not substantially all.

Nat’l Steel & Shipbuilding Co. v. United States, 190 Ct. Cl. 247, ___, 419 F.2d 863,

875 (1969). We therefore must presume that when the legislature wrote ‘all medical

records,’ it meant “all and not substantially all” records. Id.

The issue in Vaughan v. Mashburn, as here, concerned relation back of Rule

9(j) certification through an amended complaint after expiration of the statute of

limitations. Vaughan, ___ N.C. at ___, 817 S.E.2d at 379. However, the plaintiff in

Vaughan filed a motion to amend her complaint to assert that “all medical records

pertaining to the alleged negligence that are available to Plaintiff after reasonable

5 Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to simply mean that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.

4
 LOCKLEAR V. CUMMINGS

BERGER, J., concurring in part and dissenting in part

inquiry had been reviewed before the filing of the original complaint.” Id. (quotation

marks omitted) (emphasis added).

Plaintiff here did not allege in her oral motion to amend or in affidavits filed

in opposition to defendant’s motion to dismiss that her expert witnesses had reviewed

“all medical records pertaining to the alleged negligence that are available to

Plaintiff.” The record contains an unsworn, undated affidavit of Dr. Richard D.

Spellberg, who stated that he had “reviewed Ms. Locklear’s medical records from

Southeastern Regional Medical Center for the time period of July 31, 2012 through

August 5, 2012” on July 27, 2017. His answers to a written questionnaire attached

to the unsworn, undated affidavit indicate that he “reviewed Marjorie Locklear’s

medical records” for the same location and time period.

Similarly, Plaintiff provided the affidavit of nurse Melissa L. Hannah. Ms.

Hannah swore that she had reviewed Plaintiff’s “relevant medical records from

Southeastern regional [sic] Medical Center for the time period of July 31, 2012

through August 5, 2012.” Ms. Hannah also completed a questionnaire in which she

confirmed that she had reviewed Plaintiff’s “relevant medical records.”

Neither potential expert certified by affidavit or otherwise stated that they had

reviewed all of Plaintiff’s medical records relating to the alleged medical malpractice.

Dr. Spellberg simply alleged that he had reviewed Plaintiff’s medical records, but

does not state he reviewed all of Plaintiff’s medical records concerning the alleged

5
 LOCKLEAR V. CUMMINGS

BERGER, J., concurring in part and dissenting in part

negligence. Ms. Hannah stated that she had reviewed only medical records she

deemed to be relevant for that same time period. Neither meet the certification

requirements of Rule 9(j). Because Plaintiff did not assert that a potential expert

witness had reviewed “all medical records pertaining to the alleged negligence” prior

to the filing of the original complaint, she has not satisfied the requirements of Rule

9(j) as clarified by Vaughan. Any complaint that fails to comply with the certification

requirements “shall be dismissed.” N.C. Gen. Stat. § 1A-1, Rule 9(j).

Plaintiff alleged that her care and treatment
occurred July 31, 2012, and she filed her action July 30,
2015, one day before the statute of limitations would
expire. Plaintiff’s medical malpractice complaint failed to
include a required Rule 9(j) certification regarding review
of medical records.
Plaintiff failed to seek amendment of her complaint
until January 11, 2016, nearly six months after the statute
of limitations had expired, and 44 days beyond [t]he 120-
day extension of the statute of limitations available to
medical malpractice plaintiffs by Rule 9(j) . . . for the
purpose of complying with Rule 9(j). Allowing an
amendment would have been futile, so it cannot be said
that the trial court abused its discretion in denying that
motion. Plaintiff failed to plead proper Rule 9(j)
certification in her complaint before the statute of
limitations expiration. If any complaint alleging medical
malpractice shall be dismissed for failure to comply with
the certification mandate of Rule 9(j), it cannot be said that
the trial court erred in granting Defendants’ motion to
dismiss.

Locklear v. Cummings, ___ N.C. App. ___, ___, 801 S.E.2d 346, 355-56 (2017) (Berger,

J., concurring in part and dissenting in part) (citation and quotation marks omitted),

reversed, ___ N.C. ___, 817 S.E.2d 571 (2018).

6
 LOCKLEAR V. CUMMINGS

BERGER, J., concurring in part and dissenting in part

7